What principles should govern the review of an apportionment by an appellate court? The SC provides guidance on this issue in this appeal from the Scottish courts.
On 12 January 2014 the 13 year old appellant was travelling home on the school minibus. It was about 40 minutes after sunset and the light was fading. The minibus dropped off the appellant opposite the farm road she needed to take to get home. There was a 60mph limit on the road and no street lighting. The respondent was travelling home in the opposite direction in a car at around 50mph. He did not slow down as he approached the stationary bus. The appellant ran out from the rear of the bus into the road and was struck by the respondent’s car, sustaining serious personal injuries.
At first instance the Lord Ordinary found that the respondent had failed to drive with reasonable care but found that the primary cause of the accident was the recklessness of the pedestrian in attempting to cross the road without first checking it was safe to do so. He assessed contributory negligence at 90%. On appeal the Extra Division of the Inner House reduced the apportionment from 90% to 70%.
In considering the appellant’s appeal to the Supreme Court Lord Reed giving the leading Judgment stated that in any given case it is not possible to arrive at an apportionment that is demonstrably correct. It is inevitably a ‘rough and ready’ exercise. An appeal court will not therefore lightly revisit an earlier apportionment decision. In the absence of an identifiable error, such as an error of law, or the taking into account of an irrelevant matter, it is only when the apportionment exceeds the ambit of reasonable disagreement that warrants the conclusion that the court below has gone wrong.
The SC considered that the Extra Division had provided only a very brief explanation of the apportionment of 70% responsibility to the pedestrian. This was difficult to understand given the Division’s observation that the causative potency of the driver’s conduct was greater than that of the pedestrian. On an analysis of the facts the SC did not view the pedestrian’s conduct as any more blameworthy than that of the driver. This view that the parties are equally responsible for the damage was substantially different from the view that one party is much more responsible than the other. This wide difference of view exceeded the ambit of reasonable disagreement. The SC therefore allowed the appeal by a majority of 3-2, and reduced the apportionment from 70% to 50%.
Vaughan Jacob / 1st Mar 2015
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